AUSTIN -- Texas Attorney General Ken Paxton has asked the state's highest criminal court to reconsider a recent decision that stripped his agency of the power to prosecute election law violations.
The Texas Court of Criminal Appeals, in an 8-1 ruling issued Dec. 15, struck down the state law that gave the attorney general's office the authority to pursue criminal violations of the Election Code.
That 1985 law, the all-Republican court determined, violated the Texas Constitution's separation of powers doctrine by granting Paxton's executive branch office the prosecution authority that is reserved for district and county attorneys, who are members of the judicial branch.
Paxton, in a motion for rehearing filed electronically Sunday, asked the appeals court to reconsider, arguing that the ruling improperly stepped on the Legislature's ability to delegate power to his agency.
"The court's decision to suddenly remove our authority to prosecute election fraud can only empower dishonest campaigns to silence voters across the state," Paxton said in a statement.
"This decision is not only wrong on legal grounds, but it has the effect of giving district and county attorneys virtually unlimited discretion to not bring election law prosecutions," he said.
The court's ruling came in a case involving Zena Collins Stephens, who was elected sheriff of Jefferson County in 2016. An FBI investigation into somebody else found possible campaign finance violations by Stephens, but when the Jefferson County district attorney declined to prosecute, Paxton's agency picked up the case.
That led a grand jury to issue indictments charging Stephens with tampering with a government record by reporting a $5,000 campaign contribution as $50 or less and with unlawfully accepting two cash contributions in excess of $100.
Stephens responded by challenging the constitutionality of the law that allowed Paxton's agency to prosecute election law violations.
In its December ruling, the Court of Criminal Appeals said the Texas Constitution gives district and county attorneys the power to prosecute criminal law violations, with the ability to seek help from Paxton's agency if needed.
On the other hand, the court ruled, the constitution limits the attorney general's powers to inquiring into charter rights of private corporations, suing in state court to prevent private corporations from exercising unlawful powers, seeking judicial forfeiture of charters, and providing legal advice to the governor and other executive officers.
"Notably absent from these enumerations is a specific grant of authority to the Attorney General concerning the prosecution of criminal proceedings," said the ruling, written by Judge Jesse McClure III.
"In the Texas Constitution, the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally," McClure wrote.
Paxton said the ruling upends about 70 years of practice and jeopardizes the prosecution of election law violations by leaving it to local prosecutors -- including some who, he said, can't be trusted with the job.
"Last year's election cycle shows us that officials in our most problematic counties will simply let election fraud run rampant. I will continue to oppose this decision that diminishes our democracy and misconstrues the Texas Constitution," he said.
Paxton has made pursuing election fraud a focus of his agency and in 2020 intervened on behalf of then-President Donald Trump to challenge the election results in four states won by Democrat Joe Biden. The U.S. Supreme Court rejected Paxton's challenge, saying Texas lacked the standing to question election practices of other states.
Trump has praised Paxton's efforts and endorsed his campaign for reelection, but critics have said Paxton's focus has resulted in few convictions and no evidence of pervasive voter fraud, unnecessarily fueling distrust in election results.
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